Fairness and Justice

February 17, 2015

On Friday, March 6th, the Stetson Law Review will host a daylong symposium titled: Inequality, Opportunity, and the Law of the Workplace. The symposium will explore the relationship between growing economic inequality and the regulation of labor and employment in the United States. What are the driving forces responsible for widening income or wealth inequality? Should labor or employment laws be used to counteract income or wealth inequality? What types of inequality can or should employment laws address? Can labor or employment laws be effective in reducing inequality, given structural impediments such as globalization and the corporate form’s division of capital from labor? Panelists will also explore some underappreciated practical and legal limitations on improving the economic mobility of low wage workers, including garnishment laws and the First Amendment’s impact on unionization.

Wilma Liebman, former Chair of the National Labor Relations Board, is the keynote speaker. Featured speakers include Timothy Noah, Politico’s Labor and Employment Editor and author of The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It, and CATO Institute Senior Fellow Michael Tanner. David Cay Johnston (Syracuse), a Pulitzer-Prize winning journalist and the editor of Divided: The Perils of Our Growing Inequality, will serve as the moderator for a series of panels, which will including Samuel Bagenstos (University of Michigan), Matthew Bodie (Saint Louis University), Charlotte Garden (Seattle University), Dr. Larry Mishel (President, Economic Policy Institute), Paul Sonn (General Counsel/Program Director, National Employment Law Project), Katherine Stone (UCLA), Steven Willborn (Nebraska), and Michael Zimmer (Loyola-Chicago). Written articles and essays will be published in the Stetson Law Review.

Kudos to the Law Review and my colleague Jason Bent for putting together such a stellar group. The entire symposium is available for viewing via live webcast. For registration or more information about the symposium, go here.

February 14, 2015

I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers. There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order. However, the badge does not entitle law enforcement personnel to be above the law. Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny. Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community. But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur. This is essential to maintaining the public trust.

Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws). For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance). In it's December 2014 40th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.” Yesterday’s NYT editorial called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.

So, what does all of this have to do with law schools? The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000. I had the privilege and responsibility of setting this up (see pp 1013-1015). The experience enabled the law school faculty and students to design and implement an oversight body and process that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals). Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession. The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation. Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental office where people in the community can feel safe discussing alleged police misconduct. Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union. A former student even served on the Board after having been exposed to it as a law student. With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues. I urge interested law schools to reach out to explore potential opportunities.

Recently I had the honor of addressing students at the NEBLSA annual convention. In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues. More important, attendees were reminded of the important long-lasting power they have to make a difference. Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what? Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015. Some law schools have sponsored speakers and organized symposia. This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform. Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue. Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy. In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers. In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions. The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas. This is absolutely an important part of advanced legal education. Lawyers are leaders in government and in the community. People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.

February 11, 2015

The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled Lynching in America: Confronting the Legacy of Racial Terror. Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history. It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy. Lifting from the EJI web page:

EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.

Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation. Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.

Bryan Stevenson and the people at EJI do great work in so many areas. Just based on the summary document available online, there is a lot of important research and analysis in this report. In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching. The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively. The NYT also has an editorial on the report today that's worth a look.

Customers discriminate. They discriminate in whom they buy from, how much they are willing to pay for what they buy, and how they evaluate those with whom they do business—among other things. Anti-discrimination norms in contemporary U.S. society are strong, as reflected by legal constraints on discrimination by employers, providers of public accommodation and so on. But there seems to be an exemption for customers. Why?

One of their proposals might require bundling of purchases as a response to discrimination (such as requiring the purchase of tickets to women's sports teams at the same time customers purchase tickets to men's sports teams.). This leads me to ask if this is really more about redistribution of wealth than about prohibiting/punishing customer discrimination. And if that is the case, perhaps we should just redistribute property outright? A second thought here -- and this likely the only time in my life I have found myself in agreement with Robert Bork; savor this because the moment is unlikely to recur -- but I think we allow customer discrimination because of the core ideology in our country that permits individuals to make choices about how to spend money, whom to associate with, and in what ways.

November 28, 2014

About six months ago, Al Brophy posted an interesting short piece on African Americans’ difficulties in finding accommodations during the Jim Crow era. In the article, he included a link to the Green Book, a publication from the era that listed where success could be had.

Al’s piece and the Green Book itself made me wonder about the similar issues that supposedly occurred for Jews as they traveled around the U.S. in the early 1900s. During my upbringing in the 1950s and 60s, I was often told stories, particularly by my grandparents, of how difficult travel was as so many facilities had signs that stated that they were for “Christians only” or other similar verbiage. Similarly, the Green Book stated that “[the] Jewish press has long published information about places that are restricted ...” Well, after an unexpected months-long search, maybe not so much.

Without a doubt, there are some examples of travel establishments refusing to serve someone because they were Jewish. The most widely known of these events would be the Hilton-Seligman controversy of the 1870s surrounding the Grand Union Hotel in Saratoga, NY. Mr. Seligman, a well-established member of the New York City business community and a Jew, was denied a room in the hotel specifically because of his religion. To assert that this was commonplace, however, cannot be sustained, at least based on the records I have been able to find.

First, I examined the reference in the Green Book to comparable publications from the Jewish press. I found numerous travel books published during the early to mid-1900s with a Jewish audience in mind. All of these, however, were not oriented towards where Jews could find facilities that would be willing to serve them despite their religion; rather, they were oriented towards where synagogues and Kosher restaurants could be found. Unlike the Green Book, therefore, these travel guides were not to help Jews avoid discrimination, they were designed to help them find religiously compliant facilities.

Second, although there are examples of antisemitism being practiced by travel facilities from the 1800 and 1900s (and even from the 2000s), these examples appear to be just that—individual decisions by a particular facility to discriminate based on religion. No state adopted laws designed to create a Jim Crow-like system of discrimination against Jews as was done against African Americans just as there were no “Jewish divisions” in the miliary of the 1940s as was required of African-Americans. My relatives have served in the Army, Navy and Marines without any limitations because of their religion.

Since I found nothing, you may be wondering about why I have bothered to post anything on the Lounge. Again, there are two reasons. As I did the research, numerous people and organizations unselfishly gave of their time to assist me. This openness stands in stark contrast to a country where discrimination is acceptable and should be noted. More importantly, however, was the broader reminder that my research gave me. All too often we tend to compare our histories of discrimination. Comparison here means nothing—all group-based discrimination achieves nothing.

This was recently reinforced in several episodes of Henry Louis Gates’s PBS show, Finding Your Roots. It became explicit as Tony Kushner’s roots were explored. The trail of his family ended with the information from the time his family immigrated to the United States as all of the records before that were destroyed by the Nazis. Only one Jewish guest’s roots could be extended back (Carol King) as there were some Russian records that had survived. Similarly, for all of the African Americans who have been on the show, the family roots ended with slavery. Here, however, DNA has allowed some jump across the ocean as it gives some indication of what areas of Africa are represented within each person’s family. Of course, knowing your country of origin is not the same as knowing your family. Kushner and Gates discussed this in the episode. Kushner said:

Genocide is a specific thing. Slavery is a specific thing. [Slavery is] a kind of soul murder that is unlike other forms of oppression. The holocaust is a near successful attempt to obliterate ... [i]n less than a decade an entire civilization. This is beyond human comprehension. And you don’t repress the fact that it happened, but you allow a ring of unknowing to surround it because you can’t… you know what was it like on a slave ship… what was it like in Auschwitz. Our great good fortune in a way is to not actually know directly.

I wish I knew more about my family before we came to the U.S. beyond knowing that my Father’s family came from Roumania and my Mother’s family came from Ukraine and Austria. Similarly, I am sure that many African-Americans would love to know their familial background and, for many, their country of origin within Africa. The reality is that none of us will ever know this. So the end of the long search left me knowing, more surely than ever, that there is a great loss when you are cut off from your personal history. At times, to recover from this, we generate a myth that there was a pattern of discrimination. Whether these myths heal or whether they just hide the wounds does not, in the long-term, matter.

November 06, 2014

UPDATES (11/9/14): NPR reports that Hickox's boyfriend has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.

That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.

The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.

The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.

A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.

“Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).

It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and unconstitutional public health measures:

Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he "can't tell them [his doctors] to tell the truth [to U.S. officials]" on Monday's "CNN Newsroom."

“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can't tell them to tell the truth at the moment because we're seeing so much irrational behavior,” he stated. “I've come back numerous times between the U.S. and West Africa. If I come back now and say ‘I've been in contact with Ebola patients,’ I'm going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I'm back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can't be filled.”

He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That's irresponsible, but I need to get back to these hospitals and help them be prepared.

The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.

UPDATE11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: "Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone." . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: "Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department."

Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. "I don't plan on sticking to the guidelines," Hickox tells TODAY's Matt Lauer. "I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public."

Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. "If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom," she says.

On the evolving Hickox situation, it's unclear whether — as Hickox herself has suggested — she is already under a mandatory home quarantine order, which she is threatening to defy by leaving her house on Thursday morning and (unless it's been lifted) suing, or whether — as her attorneys say — she is currently under no such quarantine order and is free to leave her house at any time (but is choosing to rest for a couple of days). In any case, Maine has clearly said that it is prepared to get a court order to enforce (or impose) a quarantine order.

June 29, 2014

By now, most of you have probably heard—perhaps via your Facebook feed itself—that for one week in January of 2012, Facebook altered the algorithms it uses to determine which status updates appeared in the News Feed of 689,003 randomly-selected users (about 1 of every 2500 Facebook users). The results of this study—conducted by Adam Kramer of Facebook, Jamie Guillory of the University of California, San Francisco, and Jeffrey Hancock of Cornell—were just published in the Proceedings of the National Academy of Sciences (PNAS).

Although some have defended the study, most have criticized it as unethical, primarily because the closest that these 689,003 users came to giving voluntary, informed consent to participate was when they—and the rest of us—created a Facebook account and thereby agreed to Facebook’s Data Use Policy, which in its current iteration warns users that Facebook “may use the information we receive about you . . . for internal operations, including troubleshooting, data analysis, testing, research and service improvement.”

Some of the discussion has reflected quite a bit of misunderstanding about the applicability of federal research regulations and IRB review to various kinds of actors, about when informed consent is and isn’t required under those regulations, and about what the study itself entailed. In this post, after going over the details of the study, I explain (more or less in order):

How the federal regulations define “human subjects research” (HSR)

Why HSR conducted and funded solely by an entity like Facebook is not subject to the federal regulations

Why HSR conducted by academics at some institutions (like Cornell and UCSF) may be subject to IRB review, even when that research is not federally funded

Why involvement in the Facebook study by two academics nevertheless probably did not trigger Cornell’s and UCSF’s requirements of IRB review

Why an IRB—had one reviewed the study—might plausibly have approved the study with reduced (though not waived) informed consent requirements

And why we should think twice before holding academics to a higher standard than corporations

May 07, 2014

I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

February 07, 2014

I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse. There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions. This experience reminded me how important Indian law is, even for those who don't practice or teach it.

Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us." United States v.Windsor,133 S. Ct. 2675, at 2700 (Scalia, J., dissenting). So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below." Id. at 2702.

" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed." Id. at 407 (emphasis added).

This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.

Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents. In a 1990 memo to Justice Brennan, he is reported to have said: "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day." Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added). And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.

But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it. It relates to other areas. Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject. Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.

And that's just the beginning. There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society. Felix Cohen, the primary architect of the field, once explained: "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith." Rennard Strickland, "Indian Law and the Miner's Canary: The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991). If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction. Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v.Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Laraare replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly. Sometimes I wonder why all of this concern exists. And then America's history of interaction with tribes pops into my head and explains it. Assimilation, termination, extermination have all been official U.S. policies with respect to tribes. As a psychological matter, the fear is understandable.

And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting. Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.

November 30, 2013

Like many of you, I imagine, I'm always looking for brief clips that I can show my students to illustrate a point with a bit of humor. When I teach advance directives (and the difficulties in and drawbacks of drafting them), for instance, I show this clip from "The Comeback" episode of Seinfeld season 8. (The only downside is that each time I show it, fewer students have ever heard of Kramer and the gang.)

Well, those of you who teach the Lilly Ledbetter Act or related matters may wish to check out this short snippet from a 2012 TED talk (but going semi-viral now, thanks to Upworthy) by primatologist and Emory professor Frans de Waal. I myself plan to use it the next time I teach or talk about bounded self-interest (and in particular, preferences for fairness/inequality aversion). Even if your work has nothing to do with employment discimination or behavioral economics, these two minutes are worth watching. Because cute Capuchin monkeys.

October 26, 2013

Recently, I heard the surprising and wonderful news that considerable progress has been made on the restoration of Owens Lake and the Lower Owens River. Some of you may remember that the plot of the movie Chinatownis based on Los Angeles officials' (and others') wheeling and dealing in the early 1900s to get the rights to divert water from Owens Valley, once a fertile farming area, about two hundred miles to the City of Los Angeles (without revealing their true intentions). Teachers of Water Law, like myself, undoubtedly have at least seen the story referenced in textbooks or perhaps read the account in Marc Reisner's Cadillac Desert. The short version is that the lower part of the Owens River and the entirety of Owens Lake, a shallow, saline lake that once supported "[d]ucks . . . by the square mile, millions of them," so that "the roar of their wings . . . could be heard . . . ten miles away . . . ," were completely dried up to support the water needs of Los Angeles, causing immense air quality problems due to the dust blowing out of the dry lake bed. Marc Reisner, Cadillac Desert 59 (1993) (quoting Beveridge R. Spear). The problem fueled calls for area of origin protections in prior appropriation states, the idea being that there should be protections in place for the localities from which water is diverted and that the interests of such areas should at least be part of the calculus of deciding whether to allow a transfer out of the watershed or a new diversion. The air quality problems caused by the dust from the dry lake bed have been the subject of litigation for decades. See, e.g., County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977). But significant developments have occurred in the last few months. After a federal judge dismissed the City of Los Angeles Department of Water and Power's challenge to state air quality regulations in May, see City of Los Angeles v. Great Basin Unified Air Control District (Docket No. 1:12CV1683 AWI SAB, E.D. Cal., May 1, 2013), the Department of Water and Power negotiated a restoration plan with Audubon California, see "A California Lake Becomes a Stopover Spot Again," Audubon Magazine (Sept./Oct. 2013), and significant steps to implement the plan have already occurred according to this recent article in the Los Angeles Times. All of this goes to show that, even when we cause grave ecological harms, we sometimes get second chances.

September 10, 2013

Lately, I have been disappointed to see how reactive the legal academy has been to the legal jobs crisis. In particular, the public discussion of what to do about the decline in jobs for our graduates seems always to be about how best to cut expenses, shrink faculties, close schools, or reallocate resources. We tend to take as given the number of paying jobs available and we scrap over nothing more than how to adjust ourselves to these small numbers.

Many of these debates, apart from their antagonistic tone, are useful. Some ideas for better efficiency and reduced expenses are genuinely prudent, and we should be glad for the debate and for any ensuing reforms that make life better for our students and the public.

But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need. Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?

In certain circles, law-reform types mention notions like a "civil Gideon" or suggest renewed appropriations for public defenders, but these conversations seem to me to occur almost entirely apart from the debate about what to do about law schools. Shouldn't these topics be part of figuring out how to employ more of our graduates? Perhaps we need a strategy to dramatically increase public investment in legal services. Perhaps the new support ought to come instead from foundations or philanthropists. Perhaps the bar itself, those lawyers who have found lucrative careers in our noble profession, should be cross-subsidizing service to the less-well-off to a much greater degree. I don't know.

Excluding these questions from the debate, however, amounts to simply accepting the world as it is handed to us, as if the market for lawyers were a fact of nature. To the contrary, the market is a human creation, and humans can alter it. We strive to teach our students to fight for their clients not just on whatever unfavorable battlefield they happen to find themselves, but to seek out or even build new legal terrain upon which ever more favorable results can be won. Don't we owe ourselves the same creativity?

September 02, 2013

I just returned from a week-long trip to Washington D.C., the highlight of which was a day on the Mall listening to speeches commemorating the 1963 March on Washington and MLK's "I have a Dream" speech from 50 years ago. I was reminded that a week ago, I suggested to our entering 1L students that one aspect of being a law student is that they will never read (or listen) to the news again in the same way. As I listened to speakers who reflected on the changes in American law and policy over the past 50 years, it was an opportunity to reflect on my role as a legal educator.

If I had been a law professor in 1963 (I was only 8 years-old at the time), would I have marched? Would I have been a freedom rider? Would I have used the law school classroom to encourage students to find their voice in the civil rights debate?

. . . and as I considered these questions, I realized that they are as pertinent today as they were 50 years ago. We may not know which issues of our time will be remembered 50 years from now as a crossroad of social change . . . but we certainly have no shortage of issues facing our country . . . immigration, gun control, campaign finance reform, civilian use of drones, NSA surveillance, fair wages, health care, "stand your ground laws", abortion restrictions . . . and the pending question this week . . . possible US military action in Syria.

As law professors, what is our role in these current debates? Will we march? Will we ride? Will we incite civil debate in our classrooms and in our communities?

If you haven't taken the opportunity to listen to the speeches from Wednesday, August 28th (all easily available on YouTube by searching for "50th Anniversary of the March on Washington"), I highly recommend doing so. Most are 2-10 minutes long and are quite though provoking.

July 25, 2013

Further update 7/26/13, 1:40 pm: The sentence that this post discusses has now been fully corrected, and both the errors and changes acknowledged by TNR. Kudos. H/T Jonathan Adler at VC.

Recently, I wrote about the Zimmerman trial and my disappointment (if not complete surprise) at how irresponsible many journalists, scholars and lawyers have been in reporting, discussing, and drawing conclusions from that case. As I noted there, one of the most serious, and most obviously incorrect, of the many widespread errors about the case is that Zimmerman racially profiled a seven-year-old black child. Now, the original police log of Zimmerman's calls has been available to everyone with an Internet connection and two minutes to spare since March of 2012. Nevertheless, on July 16, 2013, The New Republic published an essay in which a distinguished law professor wrote the following (emphasis in original):

.
. . Zimmerman was an edgy basket case with a gun who had called 911 46 times in
15 months, once to report the suspicious activities of a seven year old black boy.

That sentence contains three factual errors (the broader article contains others), two of which I noted in my prior post. First, and probably of least importance, many of Zimmerman's 46 calls (reporting 43 incidents) were made to the non-emergency police number (not just to 911). Second, and of more import, Zimmerman made 46 calls over 7.5 years (not over 15 months). Third, and most egregiously, Zimmerman's call (to the non-emergency police number) regarding a seven-to-nine-year-old black boy was placed because Zimmerman was "concerned for [the] well being" of that child, who was walking unaccompanied on a busy street (see page 37).

After being alerted to at least some of these errors, TNR eventually edited the sentence. Two changes were made — one acknowledged at the bottom of the TNR
article, and one unacknowledged — while a third error was left
unaddressed. The acknowledged change addresses the least damaging of the
three errors: TNR replaced "called 911" with "called the polics [sic],"
thus implicitly acknowledging that many of GZ's calls were to the
non-emergency number rather than to 911. A more damaging error remains:
that GZ made 46 calls within "15 months," instead of over a period of
7.5 years, as the call log readily shows.

But it's TNR's unacknowledged change in response to the third, most serious, error that really chafes. Here's how the sentence now reads (once again, italics in the original):

. . . Zimmerman was an edgy basket case with a gun who had called the polics 46 times in 15 months, once to report on a seven year old black boy.

Seriously?

TNR replaced "report the suspicious activities of a seven year old black boy" with "report on a seven year old black boy." The charitable characterization of this edit is that it is very, very lawyerly. Yes, the TNR piece no longer explicitly falsely claims that GZ called the police about a black boy because GZ found the child suspicious. But in the context of a paragraph meant to demonstrate that "[v]igilante justice . . . is especially menacing to minority racial groups who are often sterotyped as criminals," and in the absence of disclosing the benign (indeed, laudatory) reason why GZ did call police, the reporting of GZ's call about "a seven year old black boy" — complete with incredulity italics — strongly implies what the article only technically no longer says: that Zimmerman "reported on" a young black child because Zimmerman stereotyped that child as a criminal.

June 03, 2013

The U.S. Supreme Court ruled this morning, in Maryland v. King,
that it is constitutional under the Fourth Amendment’s protection
against “unreasonable” searches and seizures for the state to compel
collection of DNA from arrestees. The probable cause required to
arrest someone under the Fourth Amendment permits fingerprinting and
taking photographs during the booking process, and the Court held that
collecting DNA (limited to 13 loci in supposed “junk DNA”) was not
relevantly different. The decision was 5-4, with Kennedy writing for the
Court and joined by Chief Justice Roberts and Justices Thomas, Alito,
and Breyer. Justice Scalia dissented in his usual spirited way, joined
by Justices Ginsburg, Sotomayor, and Kagan.

I may write more about this decision if I have time. In the meantime, here is a still-relevant primer
I co-authored in 2004 on legal and ethical debates involving DNA and
the criminal justice system (including issues related to both offender
DNA databases and post-conviction access to potentially exculpatory
crime scene DNA). Note that Justice Breyer (whose alignment with the "conservative" wing (sans Scalia) of the Court may surprise some), in addition to being the
Court’s resident patent expert (except him to play a large role in the
upcoming Myriad gene patenting decision), has been following
debates about DNA and the criminal justice system for some time. He
authored Chapter 2 of the book I just linked to.

May 14, 2013

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

March 19, 2013

Several research assistants and I spent last summer looking at websites from virtually every US fertility clinic. One of the things we recorded was the race of any babies pictured on the first page of the clinics’ websites. I have no background in critical legal studies or critical race theory, so I am probably not the best person to do this study, but I was looking at other advertising issues on the website, and I had read that minorities use assisted reproductive technologies at a much lower level than Whites, despite experiencing higher rates of infertility and even when states mandate fertility insurance (which should control for wealth effects).

I was surprised by the results, which are included here. It turns out that the picture of fertility care in America on websites is quite literally a picture of White doctors helping patients have White babies.

March 04, 2013

A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.

Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog, Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research. It offers several of what seem like valid criticisms and a few that don't seem so valid to me.

The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make. I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction. Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid. Finally, terms like "disrimination" "bias," etc. are all
themselves extremely loaded in that they might suggest more to some
readers than the authors intend.

On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony, does provide that expert testimony needs to meet some basic standards of reliability, etc. that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it.

I think other observations in the review are less valid. Take this one: "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test." First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes. A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.

Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched." There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.

Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques. There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions. Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references. I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.

At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts. So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.

February 18, 2013

Over at CoOps,
Dave Hoffman has graciously taken the time to
respond to my
query about why there’s been such a fuss over Scholastica’s diversity
widget, given prevailing attitudes in legal academia and elsewhere in the
academy that when selecting participants in conferences, workshops, colloquia,
and the like — which I’ll call, for short, “speaking opportunities” and which
may or may not also involve publication opportunities — it is somewhere between
permissible and obligatory to consider diversity. Dave argues that symposia (I
don’t know if he sees symposia as different than the other speaking opportunities
I mention) and articles serve different purposes, and hence, selection criteria
should be different in these two contexts. Go read his
argument, then come back for my response — and a bit of a confession.